Wednesday, August 24, 2011

Qaddafi, Libya, and presidential war powers

It would be tempting to say, in defense of President Obama's military aid to insurgents in Libya: "Told ya so." Col. Qaddafi is certainly an unappealing dictator, and many of Obama's critics were Republicans who would (and did) criticize him for any actions (or non-actions) he took on this or any issue. Unlike some U.S. military actions, this one was not unilateral, or even totally dominated by our forces. Furthermore, U.N. resolution #1973 allows members to take all actions necessary to safeguard civilians in Libya who may be under attack. Finally, the usual constitutional arguments about the President being "commander in chief were made by both the Obama administration and others who have used this argument in the past.

I don't buy it, nor am I impressed by the "nothing-succeeds-like-success" rationale. First on all, while the President may be "commander-in-chief", we know that the Congress is given the war making power by the Constitution. Commander-in-chief means that, under conditions of war, the President's orders supersede those of any military leader, regardless of rank. If the framers of our Constitution thought that that meant he could initiate conflict they wouldn't have given Congress that power. I am not a scholar of the Constitution, but I know that many such scholars -- though not all -- subscribe to this view. The fact that American presidents have failed since WWII to ask Congress for a declaration of war when engaging in armed international conflict has, I believe, turned out to be a very bad thing, with the disasters of Viet Nam and Iraq being only the most notorious examples. This is not to say that Congress would show much reluctance to undertake bloody adventures, but at least we would have a more extensive and public debate.

(For a list of military actions and authorizations or non-authorizations thereof, see this Wikipedia summary.)

Also, such a debate might have led to a discussion of how an approved action might be financed.

It is important to point out that none of the wars that presidents have undertaken since the last formal declaration -- in 1941 -- have been, in any way, such emergencies that a formal request to Congress would have caused a security problem. This is true even for the case of Afghanistan in 2001. At any time of dire threat, an emergency session of Congress could easily and quickly have been called.

After the Vietnam debacle, a "Presidential War Powers Act" (1973) was passed by Congress to ensure that at least some Congressional consultation would be made by a president within 60 days of the introduction of American forces. Some wars, such as the invasions of Afghanistan and Iraq, have been approved by Congress in this sense: not formal declarations of war, but authorizations to the then presidents to introduce American troops. I don't think this is adequate in any way. Once presidents put troops "in harms way" it is nearly impossible to get a jingoistic Congress -- or jingoistic public, for that matter -- to reverse the decision.

In fact, President Obama neither asked for a declaration of war nor invoked the War Powers Act. He and his advisors has deemed it sufficient that the U.N. passed Resolution 1973authorizing a "no-fly zone" and other actions to "protect civilians under threat of attack." What is interesting is that U.N. resolutions have the force of law in the U.S. by virtue of the terms of our membership in the organization. However, what if a U.N. resolution conflicts with the will of Congress in a matter of war? I am certain that the politics of this country are such that a president can not cede decisions on war and peace to the U.N. In reality, U.N. resolutions simply do not replace either the Constitution or the War Powers Act. For Obama to claim otherwise would mean that he could, say, bomb Israel if the U.N. passed a resolution requiring such activity -- and do this without consulting Congress -- at least for 60 days.

Yes, I hold Obama, his administration, and the Democratic Party to standards higher than I demand of the Republicans. Of course! Who would want this country run by Republican standards -- say those of Bush, Yoo, Cheney and the doctrine of the "unitary presidency"?

We don't need yet another hyperthyroidal president, even if his policies, in the short term, achieve aims we desire.

1 comment:

I too would love to see the Constitution followed on this one. I wonder where the "originalists" are when you really need them? Barney Frank has finally gotten religion on the fiscal effects of the wars (remember when everything was about "the war"?). He's actually working with Tea Party people on their shared opposition to the consensus foreign policy that seems to be unraveling daily.

For someone who cares about law so much, it is odd that Obama has dealt with the War Powers Act about the same way that Bush did -- ignoring it. At least the liberal-conservative cold warriors should attempt to argue that the Constitution must be updated to reflect the new realities of contemporary warfare. Instead everyone just ignores the legal problem.